Medical pot users fight with Phoenix

Several pot patients have filed complaints with the Oregon Medical Marijuana Program in an attempt to thwart the city of Phoenix's efforts to ban dispensaries and limit grow sites.

Damian Mann

Several pot patients have filed complaints with the Oregon Medical Marijuana Program in an attempt to thwart the city of Phoenix's efforts to ban dispensaries and limit grow sites.

"It is illegal for them to pass it," said Andrea Adams, who operates The Greenery, a nonprofit medical marijuana education center. "They don't have the right to control OMMP patients in the city."

Phoenix City Council appears poised to approve a four-month moratorium on medical marijuana dispensaries, which will operate with less legal ambiguity in the state after March 3. The city also is contemplating an ordinance that could create very restrictive limits on where medical marijuana could be grown.

Adams said she believes it would be illegal for the city to pass any rules that would step on the rights of OMMP patients in the city.

Karynn Fish, spokeswoman for the Oregon Health Authority, said the issues over dispensary placement or grow sites relate to local control.

"It is our understanding that there is nothing in the OMMP law that overrides the ability of local jurisdictions to regulate grow sites," Fish said.

Jeff Dahl, Phoenix city manager, said the city has received two complaints about marijuana grow sites, which prompted discussion about a nuisance ordinance.

Dahl said the city is left to deal with health and safety issues regarding medical marijuana that haven't been adequately addressed by the state.

"We're just figuring it out," he said. "The state has given us very little guidance."

Dahl said the marijuana grow sites have created a nuisance for neighbors who have had to contend with the smell, garden chemicals and, in some cases, rodents.

A proposed ordinance would restrict cultivation of any amount of marijuana within 1,000 feet of schools, school bus stops, school evacuation sites, churches, parks, child care centers or youth-oriented facilities.

On a separate issue, the city has been fining The Greenery $100 a day for operating without a business license. The city denied The Greenery a license because marijuana violates federal law.

Phoenix is wrestling with the issue of medical marijuana as the state gets ready to roll out a dispensary law — House Bill 3460, which defines how dispensaries can operate.

Cities such as Medford have attempted to ban dispensaries in advance of the law by citing more restrictive federal law. However, Rep. Peter Buckley, D-Ashland, and other legislators have spoken out against these bans because they believe state law preempts local laws.

Ultimately, the question of whether a city can ban dispensaries could be decided in the courts unless the Legislature clarifies whether state law can preempt local laws regarding dispensaries.

The complaint letters from patients say the city would violate the Oregon Medical Marijuana Act by seeking its own registry of patients, caregivers, plants and grow sites.

Medical marijuana patients worry the city couldn't guarantee that the information it collected would be kept confidential because of Oregon public records laws.

The patients also are concerned the city will charge a fee to register a grow site with the city and that the city will effectively ban outdoor cultivation.

Melanie Barniskis, office manager at The Greenery, said she contacted the ACLU on Dec. 16, 2013, over her concerns about what she describes as Phoenix's attempt to preempt state law.

Despite her disapproval of Phoenix's actions, Barniskis said she doesn't think sending letters to the OMMP will help.

"I know full well the OMMP has zero regulatory interest in this," she said. "They have no regulatory or enforcement arm."

She thinks it might be more appropriate to send complaints to the Oregon Health Authority instead.

Barniskis, a Phoenix resident, does believe that some of the actions proposed by her city would violate the federal Health Insurance Portability and Accountability Act of 1996 (HIPPA).

She said that what the city has proposed would essentially keep a register of medical marijuana grow sites and patients.